UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5117

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHANEKA PENIX, a/k/a Tweet,

Defendant - Appellant.

No. 09-4330

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN GARY, a/k/a Kayo, a/k/a Red Eyes, a/k/a Human Torch,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of Maryland, at Baltimore. William D. Quarles, Jr., District 

Judge. (1:08-cr-00086-WDQ-13; 1:08-cr-00086-WDQ-3)

Submitted: November 29, 2010 Decided: December 29, 2010

Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
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Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Richard C. Bittner, LAW OFFICES OF RICHARD C. BITTNER, Glen 

Burnie, Maryland; Timothy J. Sullivan, BRENNAN, SULLIVAN & 

MCKENNA, LLC, Greenbelt, Maryland, for Appellants. Rod J. 

Rosenstein, United States Attorney, Christopher M. Mason, 

Special Assistant United States Attorney, Baltimore, Maryland, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Pursuant to plea agreements, Shaneka Penix and Kevin 

Gary pled guilty to conspiracy to participate in a racketeering 

enterprise, in violation of 18 U.S.C. § 1962(d) (2006). Penix 

also pled guilty to conspiracy to distribute and possess with 

intent to distribute fifty grams or more of cocaine base, in 

violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district 

court sentenced Penix to the statutorily mandated minimum 

sentence of 120 months for her involvement in the drug 

conspiracy, with a concurrent 120-month sentence imposed for her 

involvement in the racketeering conspiracy. The court sentenced 

Gary to 360 months, as stipulated in the Fed. R. Crim. P. 

11(c)(1)(C) provision of his plea agreement. 

On appeal, counsel have filed a joint brief in 

accordance with Anders v. California, 386 U.S. 738 (1967), 

stating that, in their view, there are no meritorious issues for 

appeal. Counsel question, however, whether the district court 

erred in finding Penix ineligible for sentencing consideration 

under the safety valve provisions of 18 U.S.C. § 3553(f) (2006), 

and whether the district court complied with Fed. R. Crim. P. 11 

in accepting Gary’s guilty plea. The Government declined to 

file a brief and does not seek to enforce the waiver of appeal 

rights contained in the plea agreements. Appellants were 
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notified of their opportunity to file pro se supplemental briefs

but have not done so. 

Because neither Penix nor Gary moved in the district 

court to withdraw their guilty pleas, the Rule 11 hearings are

reviewed for plain error. United States v. Martinez, 277 F.3d 

517, 525 (4th Cir. 2002). To establish plain error, Appellants 

“must show: (1) an error was made; (2) the error is plain; and 

(3) the error affects substantial rights.” United States v. 

Massenburg, 564 F.3d 337, 342-46 (4th Cir. 2009) (reviewing 

unpreserved Rule 11 error). “The decision to correct the error 

lies within our discretion, and we exercise that discretion only 

if the error seriously affects the fairness, integrity or public 

reputation of judicial proceedings.” Id. at 343 (internal 

quotation marks and citations omitted). Our review of the 

record reveals no Rule 11 error. The court ensured that the 

guilty pleas were knowing and voluntary and supported by 

adequate factual bases. United States v. DeFusco, 949 F.2d 114, 

116, 119-20 (4th Cir. 1991). Therefore, we affirm Appellants’

convictions.

We conclude that we do not have jurisdiction to review 

Gary’s sentence. The statute governing appellate review of a 

sentence, 18 U.S.C. § 3742(c) (2006), limits the circumstances 

under which a defendant may appeal a sentence to which he 

stipulated in a Rule 11(c)(1)(C) plea agreement to claims that 
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“his sentence was imposed in violation of law [or] was imposed 

as a result of an incorrect application of the sentencing 

guidelines[.]” United States v. Sanchez, 146 F.3d 796, 797 & 

n.1 (10th Cir. 1998); United States v. Littlefield, 105 F.3d 

527, 527-28 (9th Cir. 1997). 

Gary’s sentence was not imposed in violation of law 

and did not result from an error in applying the guidelines. 

See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 

2005) (stating that “[a] sentence imposed under a Rule 

11(c)(1)(C) plea arises directly from the agreement itself, not 

from the Guidelines”); Littlefield, 105 F.3d at 528. Because we 

are barred from reviewing Gary’s sentence imposed pursuant to 

his Rule 11(c)(1)(C) plea agreement under 18 U.S.C. § 3742(c) 

(2006), and none of the exceptions apply, we dismiss Gary’s 

appeal of his sentence. 

We review Penix’s sentence under a deferential abuseof-discretion standard. See Gall v. United States, 552 U.S. 38, 

51 (2007). The first step in this review requires us to “ensure 

that the district court committed no significant procedural 

error, such as . . . improperly calculating . . . the Guidelines 

range.” United States v. Osborne, 514 F.3d 377, 387 (4th Cir.) 

(internal quotation marks, citations and alterations omitted), 

cert. denied, 128 S. Ct. 2525 (2008). We then consider the 
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substantive reasonableness of the sentence, taking into account 

the totality of the circumstances. Gall, 552 U.S. at 51.

As a result of her guilty plea to an offense that 

involved fifty grams or more of cocaine base, Penix was subject 

to a statutorily mandated minimum term of imprisonment of ten 

years. Under current jurisprudence, the district court had no 

discretion to sentence Penix below the statutory minimum. 

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). 

We conclude that the district court did not err in its 

determination that Penix was not eligible for the “safety valve”

provision to reduce her sentence, as Penix’s criminal history 

points were properly calculated under USSG § 4A1.1(c), (d). 

Consequently, we conclude that Penix’s 120-month imprisonment 

term was reasonable and affirm her sentence. 

In accordance with Anders, we have reviewed the record 

in these cases and have found no meritorious issues for appeal. 

We therefore affirm Penix’s and Gary’s convictions, affirm 

Penix’s sentence, and dismiss Gary’s appeal of his sentence. 

This court requires that counsel inform Penix and Gary, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If either requests that a 

petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 
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state that copies thereof were served on Penix and Gary. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART